New Jersey Healthcare ADR Lawyer & Attorney : Healthcare Neutral : Richard Webb : New York Metropolitan Area

          I just read an excellent post by Jeff Goldsmith in The Health Care Blog entitled "Health care is not recession proof." In it, he debunks the "conventional wisdom" that health care is "recession proof" because "people get sick regardless of economic cycles, and the publicly funded safety net programs insure that people who need care get it."

          I will not attempt to restate his entire argument (or some of the interesting comments of others), but I can't help but notice the coincidence of his central theory with current events here in New Jersey. As he explains it,

          "[t]he reality is that health care has never been recession proof. It is simply that the system is so immense that lag effects in changed health care payment conceal the cyclicality. Recessions shrink tax revenue growth, and since Medicare and Medicaid are the balancing items in state and federal budgets, Medicaid and Medicare constrict payments a predictable 18-24 months after revenue problems surface."
          
                            [Image: Yield curves in a recession, by Nathan Powell, April, 2008]
         
         
          Goldsmith's post appeared shortly before the New Jersey legislature's apparent resolution of the State's July 1 fiscal year budget, in which New Jersey's hospitals collectively will receive about $111 million less in charity care funding to cover their statutorily mandated service to all patients regardless of ability to pay, a mandate that already left hospitals well short of covering their costs at the former funding level. Thus, in New Jersey, hospitals get not only the cyclical effect of lower Medicare and Medicaid payments described by Goldsmith, but a decrease in charity care payments that is similarly driven by the State's budgetary shortfalls unrelated to healthcare.

          As Goldsmith says to the healthcare industry in closing, "Welcome to the real world!"  Better yet, for those running this state's beleaguered hospitals, "Welcome to New Jersey!"

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          The current issue of in Re: Magazine, the special supplement to the weekly newspaper, New Jersey Lawyer, is dedicated to healthcare law and is online now.

          In addition to an article by yours truly entitled Alternative Dispute Resolution In The Healthcare Industry, topics covered include:

- Nuances Of Purchasing  A Medical Practice, by Peter A. Greenbaum;

- The Next Wave Of Healthcare Fraud Enforcement In New Jersey, by Mark S. Olinsky and Gary W. Herschman;

- Answering Malpractice Insurance Questionnaires, by Christopher R. Barbrack;

- Medicaid Beneficiaries' Rights Not To be Evicted From Nursing Homes, by William P. Isele; and,

- New IRS Form 990 And Transparency For Nonprofit Boards, by Todd C. Brower and Isai Senthil.

[Image: Newspaper Rock, by Jon Sullivan, February 15, 2004]

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   [Image: Engraving of Gilbert  and Sullivan's Trial by Jury, from Illustrated Sporting and Dramatic News, by D. H. Friston, May 1, 1875.]

          Recently I wrote about the risk of an "intuitive decision" associated with placing the resolution of a dispute in the hands of a judge.  As I was writing that post, I came across reports of a case recently decided in West Virginia that should get the attention of every hospital involved in a medical staff dispute that could end up before a jury.  As mentioned in West Virginia Business Litigation by Jeffrey V. Mehalic, Hamrick v. Charleston Area Medical Center ("CAMC") was a suit filed by a surgeon against a West Virginia hospital alleging misconduct and damage to his reputation resulting from the revocation of his medical staff privileges.  The case was covered by Eric Eyre of the Charleston Gazette at the start and end of the trial.

          CAMC revoked Dr. Hamrick's privileges when he failed to obtain a required medical malpractice insurance policy, which Dr. Hamrick insisted was not necessary as long as he maintained an adequate self-insurance fund.  That issue led to separate proceedings about the  adequacy of physician self-insurance under West Virginia law, in which Dr. Hamrick prevailed, and ultimately inspired state legislation permitting physicians to rely upon self-insurance.  In the meantime, Dr. Hamrick pursued his suit against CAMC for damages and immediately obtained an injunction reinstating his privileges, thus permitting him to continue in practice at CAMC during the litigation.

          So, notwithstanding that Dr. Hamrick had established his right to self-insure in court, that the West Virginia legislature had enacted a statute permitting self-insurance of the kind maintained by Dr. Hamrick, and that Dr. Hamrick's practice at CAMC was never interrupted, what did the jury do at the conclusion of the trial?  They returned a $25 million verdict for Dr. Hamrick.

          I know only what I read in the press about this case, but it appears some facts were brought out at trial that caused the jury to conclude that CAMC management had been less than forthright in their handling of the insurance dispute with Dr. Hamrick.  Charleston attorney Scott Segal, who represented Dr. Hamrick in the case, described some of these facts in a letter to the editor of the Charleston Gazette.  On the other hand, counsel for CAMC, Bob O'Neill, told the jury that "CAMC had acted reasonably and in good faith...they bent over backward," efforts which apparently included an offer to purchase a temporary commercial insurance plan for Dr. Hamrick until the matter was resolved.

          Perhaps the best insight into the jury's decision comes from Karen Miller, Dr. Hamrick's sister and lawyer, who was quoted after the verdict in the Charleston Gazette as saying, "We need new administrators over there, and we need a new Board of Trustees.  That's what the jury is telling the community, just like the doctor's [sic] have been."  Apparently there has been some dissatisfaction within the community served by CAMC in recent years concerning the performance of its leadership.  But was it the job of the jury in this case to address that dissatisfaction, or to take action that would lead to a change in CAMC's leadership? No matter what facts came out at trial, it is difficult to see how Dr. Hamrick could have established anything more than nominal damages, let alone $5 million in compensatory damages.  The $20 million punitive damages award seems to have been aimed solely at getting rid of CAMC's Board and management - even though the community will ultimately bear this cost.  Perhaps an appeal will turn things around, but I understand that West Virgina offers no appeal of right, so the state's Supreme Court must first agree to take the case.

          What's the moral of the story?  Hospitals locked in a dispute with a physician that may end up being decided by a jury must take into account the uncertainty of the jury's reasoning process, and the certainty that the jury will not be made up of hospital administrators or health care lawyers.  Even when a hospital is sure it is  "in the right", it may end up with a very bad result.  My guess is the case didn't settle because CAMC believed (1) that it was "right," and (2) that Dr. Hamrick's last settlement demand was higher than CAMC's risk of a bad jury verdict.  Whether CAMC was "right" or "wrong" didn't matter.  Getting hospitals to understand this, and helping them to correctly assess the  competing risks, are the mediator's bread and butter.

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          [Image: Hospital Corpsman sutures a patient's hand.  Photo by Dexter Roberts, May 31, 2005]

          I recently wrote here that the Report of the New Jersey Commission On Rationalizing Health Care Resources (the "Reinhardt Commission Report") suggested three areas for collaboration between hospitals and their medical staffs that would be challenging, but worthy of pursuit.  Among them, the need to develop a mutually acceptable and enforceable program of Emergency Department coverage, jumped off the pages of the AHLA Health and Life Sciences Law Daily (members only) today in the form of an article by Ann Wlazelek in The Morning Call.  The story, "Doctors' stance leaves hospital shorthanded," tells the tale of a failed negotiation between management at Lehigh Valley Hospital and a group of specially trained hand surgeons to continue the surgeons' on-call coverage at the Hospital's Cedar Crest emergency room in Allentown, Pennsylvania.
          The Reinhardt Commission Report  (at pages  125-126) offers a concise explanation of the problem: hospitals by law must provide around the clock care in their emergency departments that includes a variety of specialized physicians' services, while the obligation of members of their medical staffs to provide those services is limited, unclear and difficult to enforce.  Most of the potential fixes for this problem suggested by the Report are outside the power of any one hospital to accomplish (e.g., standardized regulatory mandates for physician coverage,  increased Medicaid payments to physicians, regional coordination of services into Centers of Excellence).  The clear message in this portion of the Report is that each hospital faces unique circumstances, and must find its own way to solve the on-call problem.
          I don't know anything about the situation of the Lehigh Vally Hospital hand surgeons other than what I read in The Morning Call.   What I can tell is that each of the parties has adopted and stated a position that it will not relinquish.  The Hospital's position is that it must be able to determine the nature and scope of the services it will offer in its emergency department,  and that members of the Hospital's medical staff must provide all necessary on-call services as a condition of their staff membership. The hand surgeons' position is that they should not have to provide on-call services to patients from a great distance away who could have been treated by other qualified surgeons in their own area.
          Although these positions appear to be irreconcilable, I wonder if the parties have explored and shared their respective interests.  The Hospital's interests might include:
1- securing necessary medical expertise in the emergency department 24/7/365;
2- retaining the ability to determine the nature and scope of the services it will offer;
3- maintaining a medical staff rule for on-call coverage that is fair, reasonable and perceived as such; and
4- operating cost effectively. 
          The interests of the hand surgeons might include:
1- limiting their on-call coverage to patients who truly require their expertise; 
2- preserving the scheduling integrity of their regular office and surgical practice;  and
3- defining an on-call coverage obligation that is equitable when compared with other members of the medical staff. 
          I doubt that either party would object to the other's statement or attainment of their respective interests.  Might it then be possible for all or most of these interests to be accommodated within a comprehensive solution to the parties' on-call coverage problem?  I think it would.  I suspect this has not happened because the parties have not attempted to do it.  Instead, the hand surgeons are off the medical staff and the Hospital is about to spend a lot of money to recruit a hand surgeon who cannot possibly cover the emergency department 24/7/365.  Everybody loses.
          Hospitals in New Jersey and elsewhere can reach a better result if they work with their medical staffs to fashion solutions that address not their stated positions on this issue, but their respective, legitimate interests.  A mediated process of collaboration can create opportunities that otherwise will be missed.

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          [Image: US Navy Commander Robert S. Kerno, Commanding Officer, USS Yorktown, points out some sights to the President of Venezuela, Hugo Chavez, on a tour of the ship during the 43rd annual UNITAS exercise, March 2, 2002.]

          I wrote here last week that the recently released Report of the New Jersey Commission On Rationalizing Health Care Resources (the "Reinhardt Commission") contained a cogent analysis of the unique relationship between hospitals and physicians.  The Report makes a series of recommendations for the improvement of hospital finances, operating efficiency and patient care that are worthy of pursuit.  However, underlying several of those key recommendations is the need for collaboration between hospitals and the members of their medical staffs - collaboration of a kind rarely seen before now.
          In posts to follow, I will focus on what I see as three key areas in which any hospital and its medical staff can translate the Commission's recommendations into concrete results: 1- establishing joint hospital-physician accountability for adherence to evidence based practice guidelines; 2- developing a mutually acceptable and enforceable program of Emergency Department coverage; and 3- creating a feasible plan to improve the efficient use of hospital resources through changes in scheduling, deployment of professional resources, staffing of intensive care services and management of the continuum of care.
          Before any of these tasks can be addressed successfully, hospitals must decide that these are goals worthy of a significant effort.  Such an effort will likely require formation of a special Board level committee, with management staff, to be charged with development of a plan and the task of integrating the input of the medical staff.  That process of integration will vary from hospital to hospital based on the existing relationship and history, but will require careful attention in every case. 
          Although in most instances the hospital's pursuit of these goals will not immediately place it in a "conflict" or "dispute" with its medical staff, the potential for that result is high.  Moreover, the nature of the issues that must be placed on the agenda can create perceptions and reactions that, once formed, are difficult to undo.  The involvement of a neutral, third party in the design and facilitation of the collaboration process can often obviate or ameliorate these problems.  Agreement between a hospital and its medical staff on the selection of such a neutral may well be the best first step of their journey.

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     [Image: 2005 Texas Longhorn football team playing the University of Colorado, by Johntex 2005]

          The New Jersey Commission On Rationalizing Health Care Resources (a/k/a the "Reinhardt Commission") issued its long awaited Final Report 2008 last week, and was immediately met with a strong response from the New Jersey Hospital Association. In a press release, and more thoroughly in an "Initial Response" distributed to its members, the NJHA praised the Commission's Report "for effort" but found "it falls short in addressing the most fundamental problem confronting our state's hospitals: inadequate reimbursement, especially from governmental payers. The Commission's recommendations provide some steps for stopgap or incremental relief, but New Jersey's healthcare crisis is beyond the point of incremental action."
           It is hard to argue with the NJHA's point that  the reimbursement to its member hospitals by governmental payers (Medicare, Medicaid and Charity Care) is woefully less than the cost of providing that care, and that this problem is at the root of the system-wide financial crisis in the state. Perhaps the Reinhardt Commission's Report could have said this more clearly, or more forcefully.
          But I did not read the rest of the Report to suggest only "some steps for stopgap or incremental relief".  Instead, I think the Report took a realistic approach to solving the big problems by recommending a variety of significant but generally feasible changes in the way hospitals do business. Yes, hospitals need, deserve and in some cases must have more governmental funding to continue their missions. But the idea that all of the hospitals' financial problems can and will be solved only by somebody in Trenton or Washington writing a big check distracts from what the Report says hospitals must and can do to help themselves.
          In short, and in the spirit of the big game this Sunday, the Reinhardt Commission Report essentially urges New Jersey hospitals to focus on their "blocking and tackling", those elements of the game that don't get the media attention or the big money endorsements, but tend to separate the winners from the losers. In particular, the Report contains a thorough and insightful analysis of the relationship of hospitals and physicians, with recommendations for improvement that could have a major, positive impact on the financial performance of most hospitals. I think that's something worth talking about, and I plan to do so in some posts to follow.
          In the meantime, Go Giants!

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          [Image: Auctioneer and assistants, Cheviot, Ohio, 2004, by Rick Dikeman]
     

         Less than three months ago, I wrote here (with reference to Boston's Carney Hospital) about the need for financially distressed hospitals to involve all stakeholders in a collaborative process in order to achieve the best overall result.  Now I see that two New Jersey hospitals have long since passed that moment of opportunity and find themselves up for auction in bankruptcy proceedings.  Yesterday, The Record reported that auctions were set for Pascack Valley and Barnert Hospitals.  Today, reports indicate that Barnert's fate awaits the outcome of further creditors' wrangling in the Bankruptcy Court, while one of the bidders for Pascack Valley  is seeking to delay the auction of that facility scheduled for February 4.
          It is hard to imagine that any of the "stakeholders" involved in the early days of a financially distressed hospital scenario would purposefully choose to resolve their common problem by way of an auction sale in Bankruptcy Court.  Such proceedings are intended and designed to yield the best result for the hospital's creditors.  Although the interests of other constituencies (the hospital's Board, employees, medical staff, patients and community) may be brought into play, the creditors (and more precisely, certain creditors) are driving the bus.  This is not inappropriate given the underlying purpose of the Bankruptcy Code to fairly allocate the debtor's assets among its creditors.  But it makes no sense for these other constituencies to get on this bus if they have any choice in the matter.
          They often do have that choice, but fail to seize the opportunity.  It occurs well before the "B" word is first openly discussed, but when leadership of the hospital knows (or should know) that the status quo cannot be maintained.  Once that moment passes, the options available to the stakeholders begin to diminish, little by little, until one day there is no choice but to close the doors and hold an auction.
          The recently released Final Report 2008 of the New Jersey Commission on Rationalizing Health Care Resources (a/k/a the "Reinhardt Commission Report") addressed this problem to some extent by recommending (at Chapter 15, page 181) that state regulators create an "Early Warning System" to monitor and detect negative financial trends, and "to intervene at the level of hospital governance and management in a graduated fashion based on severity of financial problems and responsiveness of management."  Although a laudable effort, my guess is that this process will in many cases come too late, and when it does, will put state regulators in the driver's seat. 
          The hospital's stakeholders need to do better.  They can, but only through exercise of  leadership that acknowledges the realities of the hospital's predicament, and moves beyond pointing fingers and posturing into a collaborative process to find a solution.

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         [Image: Omaha jazz great Lewis "Luigi" Waites plays the vibraphone during a tribute to Duke Ellington, July 29, 1999, Photo by Jim Williams, for "Joselyn Art Museum: Jazz on the Green," a Nebraska Local Legacies project]

         I just heard from Debra Gerardi, Chair of the Program on Healthcare Collaboration and Conflict Resolution at the Werner Institute for Negotiation and Dispute Resolution at Creighton University.  Debra alerted me to an upcoming program at the Werner Institute that should be considered by anyone interested in healthcare dispute resolution.  Creating Cultures of Engagement in Health Care - International Conference and Dialogue: New Models for Addressing Conflict, Disruption and Avoidance in Health Care, will be held at Creighton in Omaha on June 3-5, 2008.

        As stated in the program description on the Werner Institute's website, the purpose of the conference is to provide participants with an opportunity to:

1. Learn how to apply principles and practices from the field of dispute resolution to upcoming mandates for change including the new 2009 JCAHO leadership standards related to disruptive behavior and conflict management;
2. Learn the principles guiding conflict resolution practice in health care including the essential components for conflict management training programs;
3. Working with experts in health care mediation, negotiation and collaborative law, create an action plan for advancing the outcomes of the conference dialogues and create an ongoing community of experts.

       Thanks again, Debra! 

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[This post is taken from my longer article, "Economic Credentialing -  Hospitals and Physicians at the Crossroads", appearing in the New Jersey Lawyer Magazine, February 2007.]  

          "Economic credentialing"  generally refers to any hospital policy of limiting membership on its medical staff, or the right to exercise certain clinical privileges,  to those physicians who have demonstrated patterns of practice in keeping with announced economic parameters.   Implementation of a successful program of economic credentialing will be more likely if it includes the following components:

1. development of a persuasive financial analysis to demonstrate the necessity of the desired changes in physicians' behavior;
2. solid medical support for the safety and efficacy of the desired behavior required by the rules;
3. an outlier provision to recognize extraordinary cases that fall outside the normal range of circumstances that justify the rules;
4. an enforcement mechanism based upon a percentage of compliance that can start at the current mean and adjust to the optimal level over a reasonable time;
5. consideration and approval of specific standards by each department or division of the medical staff to which the rules will apply;
6. initial and ongoing education of the entire medical staff concerning the scope and benefit of the rules; and,
7. periodic reevaluation of the scope of the rules in light of medical literature and the experience at the hospital.
   

Hospitals and physicians share an interest in the hospitals' financial viability.  They also share an interest in maintaining facilities of the highest quality and providing the best patient care possible.  These interests are enough to unite them in confronting the overwhelming economic pressures facing hospitals and physicians today.  Through their cooperation, economic credentialing can become a positive force for change within hospitals. It can form the foundation for the successful hospital-medical staff relationship of the future.

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           [Image: Cliffs of Moher, Ireland, Photo by Tobias Helfrich, March 27, 2004]

          The range of conflicts arising within the healthcare industry that could benefit from the application of an alternative dispute resolution process is as broad as one’s imagination.  This is a partial list of the circumstances in which conflicts can arise and ADR can be used effectively.

• Contracts between hospitals, physicians and other providers for professional services  (conflicts arising in their formation, operation, renewal or termination)

• Contracts with vendors (conflicts arising in their formation, operation, renewal or termination)

• Joint venture agreements (conflicts arising in their formation, operation or termination)

• Medical staff relations (conflicts arising in interpretation or amendment of bylaws, inter-department issues or clinical policies)

• Medical staff privileges (conflicts arising in individual applications or disciplinary matters)

• Managed care agreements (conflicts arising in their formation, operation, renewal or termination)

• Disposition of financially distressed facilities (conflicts involving creditors, government regulators, staff and community)

• Inter-institutional affiliations, mergers and acquisitions (conflicts arising in their formation, operation or termination)

• Physician practice acquisitions (conflicts arising in their negotiation or unwinding)

• Governance matters (intra-corporate board conflicts, including conflicts concerning management  performance or bylaws revisions)

• Patient relations (conflicts arising in consent to treatment, quality of care, medical errors, billing and collection matters)

• Governmental regulation (conflicts arising in licensing, compliance or enforcement matters)

• Employment issues (conflicts arising in employee discipline or termination)

• Professional practices (conflicts arising in their formation, entry of new partners, withdrawal of partners, retirement or dissolution)

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          Completing the thought addressed in the two previous posts, there is a third reason why ADR works well in resolving healthcare industry disputes.

[Image: "Smeden og bageren". Illustration by Theodor Kittelsen for Johan Herman Wessel's poem]

Reason #3. 

          Parties to a healthcare dispute can especially benefit from ADR because the unique and complex subject matter of their conflict can be readily accommodated.  By selecting an ADR process and a neutral best suited to the conflict at hand, the parties move immediately into an efficient and productive mode of dispute resolution.  Resorting to traditional courtroom litigation often requires that a judge be educated on the parties’ business model, the world of healthcare finance and reimbursement, and a variety of legal constraints unique to the healthcare field.  Experience indicates that this is a difficult, time consuming and expensive process.  Although most judges are highly intelligent and capable, there is only so much time that can be devoted to each case.  Moreover, most judges sit in courts that handle cases of all varieties, in which healthcare cases are a relatively infrequent occurrence.

          By selecting an ADR neutral with substantive knowledge of the healthcare business and healthcare law, the parties achieve not only efficiency, but a much greater likelihood that they will obtain a result that is fair and mindful of both parties’ real interests.  Although the precise role of the neutral varies within the ADR process selected, the neutral can often help the parties and counsel better identify their interests and how they might mesh with those of the other party.  Where common ground is difficult to find, the neutral can help each party better understand all consequences of the proposals on the table, as well as those of “walking away”.  Sometimes, the neutral’s best value comes from affirming something a party has already heard from counsel, but better accepts with the neutral’s concurrence.  The credibility of the neutral as someone who truly understands the conflict just as well as the parties and their counsel is critical to achieving this result.

          Many examples of this advantage of ADR in healthcare can be imagined, but one may illustrate the point.  A hospital that has “exclusive” contracts with two medical groups to provide two different kinds of medical services at the hospital is faced with a dispute between the groups over which of them has the right to perform a new procedure, a dispute which quickly becomes a three way conflict involving the hospital.  Such “turf battles” are not unusual.  Aside from reviewing whatever the parties’ existing contracts say on the subject, the resolution of this conflict may require consideration of expert input on the impact of the outcome on patient care; the application of the hospital’s medical staff bylaws; provisions of existing managed care agreements;  Medicare reimbursement rules concerning permissible billing by the respective groups; state law and regulations governing hospital licensing and permitted scope of medical practice; and the resolution of other previous (or potential) “turf battles” at the same hospital.  Although the use of ADR in this case may not make all parties wildly happy, the neutral’s appropriate and timely attention to all of these factors will vastly improve the quality and fairness of the outcome.

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          Continuing the thread started in my last post, there are several reasons why ADR works especially well in the healthcare industry. 

[Image: Photo of Coins in the Trevi Fountain in Rome being collected at early morning, by Giovanni Dall'Orto, March 2005]

Reason #2. 

          The parties to a healthcare dispute often (although not always) have interests at stake other than money, or which cannot easily be reduced to a specific dollar demand.  Traditional courtroom litigation is designed primarily to determine which party to a dispute must pay the other party, and how much.  Although courts can grant “equitable relief”, essentially ordering one party to do or stop doing something, that option is limited in scope and driven by the form of the prevailing party’s plea for relief.  In contrast, ADR processes embrace the notion that flexible solutions, tailored to the parties’ unique interests, offer  the best outcome to any dispute.

          An example of this advantage of ADR would be a dispute between a hospital and a medical group over the interpretation of the group’s contract to provide certain medical services at the hospital.  The dispute could involve any number of issues important to both parties, but could easily place the parties in a situation where the contract seemingly must be terminated, and one side will then sue the other for breach of contract.  Neither party in such case really wants to sue the other for money damages, nor do they want the disruption to patient care and hospital services that would accompany protracted litigation.  Courtroom litigation in such case will ultimately assure that the parties’ legal rights are determined and enforced, but it will also create the negative collateral effects that come from using too dull and heavy a tool.  The use of ADR processes in such a case would provide the parties with options and alternatives from which to jointly reach a workable solution.

          Other examples of this advantage of ADR would be disputes over the medical staff privileges to be granted by a hospital to a physician or other practitioner; conflicts between a hospital and its medical staff concerning the interpretation or amendment of the medical staff’s bylaws; disputes within the board of trustees of a health system concerning the system’s mission, or the performance of management; and disputes among providers concerning quality of care or patient access issues.  Although financial considerations may be important in all these disputes, in none of them does either party seek a payment of money.  ADR processes, as determined by the parties, could be focused immediately upon what the parties in such cases really care about. 

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          Alternative dispute resolution (or “ADR”) is increasingly being used to resolve conflicts arising in all facets of society.  The chief benefits of ADR (cost savings, faster results, confidentiality, and the parties’ control of the process) have been well established.  ADR is particularly appropriate for use in the healthcare industry for several additional reasons, the first of which is described today:

[Image: Table 10 from Gilbert Beckett, A Comic History of Rome  c. 1850, Cicero denouncing Cataline]

Reason #1. 

          The parties to a healthcare dispute often have some interest in (or need for) a continuing relationship after the current dispute is resolved.  By its nature, traditional litigation is an adversarial and combative process.  The objective of each party’s counsel is to crush the other party’s case, and in the process, the other party is often hurt as well (if not destroyed).  In contrast, although ADR involves advocacy of both sides of the conflict, the parties have jointly committed to a process of their choosing to reach a fair result that both will accept.  The likelihood of a viable relationship after resolution of the dispute is thus vastly improved.

          Examples of this advantage of ADR could occur with respect to the relationships between a hospital and members of its medical staff; partners to a healthcare joint venture; members of a professional practice; health providers and their patients; and health insurers and health providers. Because the need for healthcare services continues to grow, and there are a limited number of established participants in the delivery of (and payment for) those services, there is a significant incentive in many disputes for both parties to put their conflict behind them.

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[Image: Musher Thomas Knolmayer at the Willow, Alaska start point of the 2005 Iditarod sled dog race, Photo by Tech. Sgt. Keith Brown]

          With this post, I start my first blog and what I think is the only blog site devoted to the topic of alternative dispute resolution in the healthcare industry.   As stated above on the masthead, I intend to blog at the intersection of ADR and healthcare law.  Both of these topics are well covered separately elsewhere (see links and blogs in sidebar), and I will try not to duplicate those efforts. 

          To make this site most useful, and to bring some order to my thoughts, I am dividing the world of ADR For The Healthcare Industry into topics that make sense to consider separately.  In alphabetical order, this blog will discuss alternative dispute resolution in the context of:

Commercial Healthcare Disputes

Medical Malpractice Claims

These topics will overlap, and undoubtedly will subdivide and recombine over time.  But this is where I will start.  Let me know what you think.

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